As a historian, I want my students to understand, as best as possible, the meaning of the constitution in its 18th-century context. This requires them to know something about a world that is long gone. We like to say, with the writer L.P. Hartley, that “past is a foreign country, they do things differently there.”
But there is a big difference between understanding the world of the framers and suggesting that we should still live by that understanding today. Such an approach ignores changes over time.
Such an “originalist” approach to the Constitution also implies that the ideals embedded in the Constitution were not contested and controversial at the time they were written.
Here is a taste of constitutional historian Jack Rakove’s piece at The Washington Post:
At first glance, questions of original intent seem like ideal problems for historians to solve. How can we determine what the Constitution truly meant except by examining why its clauses were proposed and how they were supported or criticized? The Constitution and its amendments were products of political debates; reconstructing those debates is how one would decipher its “original meaning.”
But the main advocates for originalist theory are lawyers, not historians, and they act under different assumptions. Where historians would be content to describe a set of debates reflecting an array of perspectives, legal originalists want to “fix” the meaning of constitutional terms — to come up with the one best answer to the puzzles that jurists have to solve. They assume the words the framers used had settled meanings and that a conscientious reader — an informed public official, a learned jurist or just a responsible citizen — can understand those meanings without knowing anything about the debates that produced the text.
One problem with this idea is that the founding era was a period of intense conceptual change. Some of the key words and terms in our constitutional vocabulary were subject to pounding controversy and reconsideration. One has to engage these debates to understand how Americans were thinking about these issues at the time. For today’s originalists, that complexity is part of the problem. The records of history are often messy, not neat; speakers argue past each other or engage in rhetorical excess; their fears are dated, their expectations of worst consequences exaggerated.
Rather than accept these aspects of the historical record, today’s originalists prefer to regard the Constitution as a purely legal text, subject to ordinary rules of construction. Yet the linguistic sources they rely on will not provide the answers they seek. There is no adequate dictionary definition of “the executive power” that Article II vests in the president. Understanding what the “establishment of religion” invoked in the First Amendment meant to its framers requires examining the complex ways in which the states had supported the existing denominations of a very Protestant America. As Thomas Jefferson explained in his “Notes on the State of Virginia,” the very word “constitution” had multiple meanings that were still evolving precisely because Americans were trying to figure out how to make written constitutions — their greatest innovation — the supreme law of the land.
Context, context context. As I see it, it difficult to be a historical thinker and a constitutional originalist.
Read the Rakove’s entire piece here.